DPP v Scanlon

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 17 June 2016
• Neutral Citation: [2016] IECA 189
• Docket Number: 124/14
• Court: Court of Appeal (Ireland)
• Date: 17 June 2016

Sheehan J.

Mahon J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Patrick Scanlon

Appellant

[2016] IECA 189

124/14

THE COURT OF APPEAL

Sentencing – Drug offences – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Scanlon, on the 20th May, 2014, following an eight day trial at Limerick Circuit Court, was convicted of two offences contrary to s. 15A and 15B of the Misuse of Drugs Act 1977 and, following a brief sentencing hearing immediately thereafter, was sentenced to fifteen years imprisonment in respect of each of these offences. The value of the cannabis involved in this case was ?79,076. The appellant appealed to the Court of Appeal against severity of sentence. The appellant contended that the sentencing judge was wrong in holding that he was obliged to impose a sentence of not less than ten years imprisonment. He also contended that the sentencing judge erred in his approach to sentence by failing to locate the offence on the scale of available penalties, and further that he erred by imposing a sentence that was excessive. Finally, the appellant submitted that whatever sentence is deemed to be appropriate by the Court of Appeal, that sentence ought to be reviewed when 50% of the said sentence has been served.

Held by Sheehan J that, having considered s. 27(3F) of the 1977 Act in light of the submissions, there was no lack of clarity about the section; it is a clear warning to those with convictions for specific drug offences that if they similarly re-offend, they will face a minimum of ten years imprisonment without qualification. Sheehan J agreed with the submission of the respondent, the DPP, that were the Court to otherwise hold, they would effectively be amending the said legislation. Accordingly, the Court held that the sentencing judge was correct in interpreting the section as obliging him to impose a sentence of not less than ten years imprisonment. Sheehan J noted that the sentencing judge did not identify a headline sentence. The Court was unable to ascertain from the sentencing judge?s remarks what reduction in sentence he actually allowed for the mitigation that he referred to. Accordingly, the Court held that this failure constituted an error in principle in the trial judge?s approach to sentence. The Court agreed with the Circuit Court judge that the offence was undoubtedly serious and merited a substantial sentence. In the Court?s view the appropriate sentence ought to have been one of twelve years imprisonment. Having received a number of important testimonials as well as certificates and other documentation confirming the appellant?s progress in prison, in particular his engagement there with rehabilitative programmes, the Court reduced the sentence further.

Sheehan J held that the Court would impose a sentence of eleven years imprisonment in lieu of the original sentence of fifteen years imprisonment. Sheehan J was satisfied that the appellant?s addiction to controlled drugs was a substantial factor in the commission of the offence, and he directed that he be brought before Limerick Circuit Court for a review of sentence once he has served the equivalent of half of his sentence.

Appeal allowed.

JUDGMENT of the Court delivered on the 17th day of June 2016 by Mr. Justice Sheehan

1 This is an appeal against severity of sentence.

2 On the 20th May, 2014, following an eight day trial at Limerick Circuit Court, the appellant was convicted of two offences contrary to s. 15A and 15B of the Misuse of Drugs Act 1977 as amended and, following a brief sentencing hearing immediately thereafter, was sentenced to fifteen year imprisonment in respect of each of these offences.

3 The background facts have already been set out in a judgment delivered by this Court on the 13th October 2015 in relation to the appeal against conviction and do not need to be repeated here, save to note that the value of the cannabis involved in this case was ?79,076.

4 The appellant contends that the sentencing judge was wrong in holding that he was obliged to impose a sentence of not less than ten years imprisonment. He also contends that the sentencing judge erred in his approach to sentence by failing to locate this offence on the scale of available penalties, and further that he erred by imposing a sentence that was excessive. Finally, the appellant submits that whatever sentence is deemed to be appropriate by this Court, that sentence ought to be reviewed when 50% of the said sentence has been served.

5 In order to consider these grounds of appeal, it is necessary first of all to set out the agreed chronology of relevant events, the relevant statutory provisions and the sentencing remarks of the trial judge.

Chronology

26th May, 1999: Part II of the Criminal Justice Act 1999 was commenced, which provided for a new offence of possession of controlled drugs with intent to sell or supply with a value of £10,000 contrary to s. 15A of the Misuse of Drugs Act 1977.

25th June, 1999: The appellant was found in possession of 130kg of cannabis resin.

12th December, 2000: The appellant was sentenced to seven years in Limerick Circuit Court for an offence contrary to s. 15A of the Misuse of Drugs Act 1977 arising from the June, 1999 offence.

12th March, 2006: The appellant's approximate release date in relation to the June, 1999 offence with full 25% remission.

18th May, 2007: Section 27(3F) of the Misuse of Drugs Act 1977 was commenced which provided for no discretion in imposing a sentence of ten years where there is a previous conviction for a s. 15A offence.

8th August, 2013: The appellant committed an offences contrary to ss. 3, 15, 15A and 15B of the Misuse of Drugs Act 1977 (as amended) in relation to the possession of 3.95kg of cannabis with a value of ?79,076. The appellant has been in custody since this date.

28th May, 2014: The appellant was convicted following an eight day trial before the learned trial judge and a jury in Limerick Circuit Criminal Court. He was sentenced on the same day as the verdict to 15 years imprisonment on the ss. 15A and 15B charges. No penalty was imposed on the related ss. 3 and 15 charges.

30th October, 2015: This Court (Sheehan, Mahon and Edwards JJ.) refused the applicant's appeal against conviction.

4th November, 2024: The appellant's approximate release date should he achieve full 25% remission. The appellant will then be 64 years old.

Statutory provisions

6 Section 27 of the Misuse of Drugs Act 1977 , as amended by s. 5 of the Criminal Justice Act 1999, s. 84 of the Criminal Justice Act 2006 and s. 33 of the Criminal Justice Act 2007, provides for sentencing of s. 15A and s. 15B offenders as follows:-

?(3A) Every person guilty of an offence under section 15A or 15B of this Act shall be liable, on conviction on indictment -

(a) to imprisonment for life or such shorter term as the court may determine, subject to subsections (3C) and (3D) of this section or, where subsection (3F) of this section applies, to that subsection, and

(b) at the court's discretion, to a fine of such amount as the court considers appropriate.

(3B) The court, in imposing sentence on a person for an offence under section 15A or 15B of this Act, may, in particular, have regard to whether the person has a previous conviction for a drug trafficking offence.

(3C) Where a person (other than a person under the age of 18 years) is convicted of an offence under section 15A or 15B of this Act, the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person.

(3D) (a) The purpose of this subsection is to provide that in view of the harm caused to society by drug trafficking, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under section 15A or 15B of this Act, shall specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of the offence, it would be unjust in all the circumstances to do so.

(b) Subsection (3C) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances and for that purpose the court may, subject to this subsection, have regard to any matters it considers appropriate, including -

(i) whether that person pleaded guilty to the offence and, if so -

(I) the stage at which he or she indicated the intention to plead guilty, and

(II) the circumstances in which the indication was given, and

(ii) whether that person materially assisted in the investigation of the offence.

(c) The court, in considering for the purposes of paragraph (b) of this subsection whether a sentence of not less than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to -

(i) whether the person convicted of the offence concerned was previously convicted of a drug trafficking offence, and

(ii) whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence.

(3E) Subsections (3C) and (3D) of this section apply and have effect only in relation to a person convicted of a first offence under section 15A or 15B of this Act (other than a person who falls under paragraph (b) of subsection (3F) of this section), and accordingly references in those first-mentioned subsections to an offence...